Opinion
2003-1172 WC.
Decided June 4, 2004.
Appeal by plaintiff from an order of the City Court, City of Mount Vernon, Westchester County (W. Edwards, J.), entered June 9, 2003, which denied plaintiff's motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Plaintiff instituted this consumer credit transaction to recover the outstanding balance due on a credit card issued to defendant. Plaintiff's first cause of action alleged a default in payment pursuant to the agreement. Its second cause of action was based on an account stated. Plaintiff moved for summary judgment. The motion was denied and the instant appeal ensued.
In opposition to the motion, defendant stated that she telephoned plaintiff shortly after receiving the September 26, 1999 statement and asserted that certain charges appearing thereon were unauthorized. Defendant stated that she was advised by plaintiff's representative that plaintiff would investigate the matter. In the interim finance charges continued to accrue on the disputed charges as indicated in the October 26, 1999 and November 26, 1999 statements. Plaintiff, on December 7, 1999, as indicated in the December 26, 1999 statement, reversed the finance charges and credited defendant's account with same. In the ensuing months plaintiff reinstated the finance charges on defendant's outstanding balance, which included the disputed charges.
Generally, an account stated is an agreement between the parties that the debt is valid and due ( see Citibank [S.D.] v. Jones, 272 AD2d 815), and a defendant's receipt and retention of plaintiff's account without objection within a reasonable time entitles the plaintiff to summary judgment on the account stated independent of the obligation ( see Warner v. Nelkin, 206 AD2d 422). It is our opinion that defendant's alleged oral objection to the charges, together with the credit card statement reversing the finance charges relative to the disputed charges, create an issue of fact which precludes summary judgment on plaintiff's cause of action for an account stated ( cf. Greenspan Greenspan v. Wenger, 294 AD2d 539). Moreover, in view of the foregoing, an issue of fact exists as to plaintiff's cause of action based on defendant's default in payments pursuant to the agreement ( see 15 USC § 1643 [a]; 12 CFR 226.12 [b]; General Business Law § 512).